Sexual Harassment and the Independent Contractor

>Should freelance writers be entitled to sue editors who harass or otherwise discriminate against them on the basis of sex, race, or religion? Not in my view and not according to federal employment law: Title VII protects employees, not independent contractors (although courts will examine the facts of the working relationship to determine whether someone classified as a contractor actually functions as an employee).

So I can't help but wonder about the legitimacy of the sexual harassment lawsuit that independent contractor Jodie Fisher filed against former HP CEO Mark Hurd. Maybe she functioned more like an employee than a contractor; I assume we'll never know since her threatened lawsuit was settled privately. But, for what it's worth, Fisher has been described repeatedly in the press as an HP marketing contractor or even an "occasional" contractor, who attended a series of events for HP over a period of about two years (and previously dabbled in acting, real estate, and sales). She described herself as, "under contract to work at high-level customer and executive summit events held around the country and abroad."

Was Hurd brought down (or shaken down) by a frivolous legal claim? I don't know, but I doubt that this controversy will advance efforts to stem sexual harassment. It offers, at best, a confusing picture of sexual harassment law and, on its face, it trivializes the sexual extortion, intimidation, and abuse suffered by some women who have virtually no independence from their workplaces and virtually no choice but to labor in very hostile environments.

I don't mean to characterize Fisher's underlying allegation as trivial; she reportedly accused Hurd of denying her additional contract work because she declined to have sex with him. An HP employee, fired for refusing to sleep with her boss would have a substantial harassment claim. But the harm suffered by an independent contractor confronted with an explicit, or implicit, demand for sex is relatively trivial compared to the harm suffered by an employee confronted with the same demand. The employer's moral as well as legal obligation to an employee is much stronger than his obligation to a contractor or consultant who is genuinely independent of him and free to take her business elsewhere. If she hasn't cultivated business elsewhere, that's her problem and maybe her fault.

I realize this sounds harsh, particularly in a time of persistently high unemployment, when so many people are compelled to seek work as freelancers. (Although if they function like employees they should enjoy the legal protections extended to employees.) And, having spent the past 30 years freelancing, I understand its challenges, including the leverage that a large employer may enjoy over an individual consultant; I sympathize with the plight of people who've turned to freelancing out of necessity, not desire. But my own work experiences also underlie my aversion to government regulation of freelance relationships. Even if the freedom they confer is unwanted, by people who'd prefer toiling as employees, it still entails an opportunity and obligation to be responsible for and to yourself.

I don't want to excuse discriminatory conduct directed at consultants instead of employees; I do want to stress the difficulty of policing it and the questionable justifications for government intrusion into idiosyncratic working relationships between relatively independent parties. Harassment is an abuse of power; independent contractors are, in general, unlikely to be as powerless as employees.

Does this provide their clients with a license to harass or otherwise discriminate against them? Perhaps, but it assumes that consultants are generally better equipped to fight back, without the assistance of government. If that's a faulty assumption in some cases, it may still generate fewer abuses overall, mainly in the form of frivolous lawsuits, than rules treating freelancers like ordinary employees. The price of freedom is protecting yourself against the lechery, bigotry, and general idiocies of clients; the benefit is not being bossed around.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.